BQQ v NSW Department of Family and Community Services [2015] NSWCATAD 55

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BQQ v NSW Department of Family and Community Services [2015] NSWCATAD 55 Hearing dates: On the papers Decision date: 27 March 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: N Isenberg, Senior Member Decision: The Tribunal has no jurisdiction to consider the application for review Catchwords: Privacy – alleged breaches predate Acts Legislation Cited: Health Records and Information Privacy Act 2002 Privacy and Personal Information Protection Act 1998. Category: Procedural and other rulings Parties: BQQ (Applicant) Department of Family and Community Services (Respondent) Representation: Solicitors: BQQ (Applicant in person) NSW Department of Family and Community Services (Respondent) File Number(s): 1410718

Judgment 1. The applicant, BQQ, has applied for a review of a decision by the Respondent, the Department of Family and Community Services ('the Department'). 2. The applicant provided, in support of her application for review, a number of documents, but it was unclear precisely what aspect of the Department's conduct about which she complained. A planning meeting was held on 4 March 2015, attended by the applicant and her father assisted by an interpreter in the Russian language. Ms McDonald, from the Multicultural Disability Advocacy Association (City & Inner West) attended as a support person. I asked the applicant to clarify in what way she alleged the Department had breached her privacy. The applicant referred to actions by the Department in 1991 and in the following 4 years. These actions were detailed in her original complaint to the Department, made on her behalf by the Multicultural Disability Advocacy Association. The following is largely extracted from that complaint. 3. The applicant was born in the former USSR and came with her husband and child to Australia in 1989. There was immediate tension between the applicant and her in-laws, who were also here. There was tension with her husband and he became physically and emotionally abusive towards her. In 1993, her child, then aged 12, called the police to come to the family home. Officers from the Department also attended as the applicant's husband alleged she had hit the child. The husband left the family home, taking the child with him. She was denied access to the child. Despite her requests that the Departmental officers organise a meeting between herself, her husband and their child, they declined to do so. 4. The applicant's parents moved to Australia to provide her with support, amid contentions that the applicant was 'mentally ill'. In 1993 the child made application for an Apprehended Violence Order protecting him from the applicant, accusing her of 'stalking'. The applicant agreed to the Order because she felt that she had to and because she was not being supported to take the opportunity to tell her side of the story. The following year the applicant's husband filed for divorce. She claimed she was not served with the divorce papers and her acknowledgement was forged. She denied that her child wanted nothing to do with her as the divorce papers claimed. She claimed the child had been manipulated. 5. The applicant contended that the Departmental officers had information in 1993 which indicated that the applicant's family situation was very complex but had failed to respond appropriately. 6. When the officers followed up with the community welfare organization to which they had referred the applicant they were told 'the family are having a difficult time because of the medical problems and family problems'. The material records that the community welfare organization counsellor discussed the applicant with her GP who allegedly described her as 'psychotic' although he subsequently denied that he had done so. 7. The Department allegedly did not ask the applicant about her health or for information so that it could contact her medical professionals. The applicant, at that time, had ongoing neck pain. Her treating rheumatologist described her as being in physical pain due in part to emotional trauma and she required psychosocial treatment, not referral to a psychiatrist. The Department, possibly erroneously, recorded that the applicant had been referred to a psychiatrist but had refused to go. The applicant did attend a psychiatrist in 1994 when she became aware that the AVO application alleged she was mentally unwell. She was described as 'suffering from reactive anxiety compounded with desperation resultant of a very complex and painful family experience' but the psychiatrist 'couldn't find any other grounds for her suffering a psychotic illness'. 8. The Department was reportedly given information by the community welfare organisation about the applicant's health. She reported that it is not her signature on the consent form dated 1991 which the community welfare organisation relied upon for the release of information. It was submitted that although the Department had information directly from the applicant that she had been living in a domestic violence situation which could reasonably be expected to cause her to present in a very emotional state, the Department considered she was mentally ill. 9. It was submitted that there was a breach of Health Privacy Principle 3 in that the Department collected health information about the applicant other than in the most direct manner. A breach of Health Privacy Principle 2 was also alleged in that the Department collected inaccurate health information. Further, it was alleged that there had been a breach of Health Privacy Principle 4 in that it was not transparent about the health information being held by the Department about the applicant.